Law Line - Employment Law

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Fired and It wasn’t Fair

The bad news is that most of the time employers can fire you for any reason they want to. There are only three reasons why an employer can’t fire you. We will go over them one at a time.

First, an employer cannot fire you if it goes against an agreement or contract. The contract could be a personal contract you and the employer made when you started work. A personal contract can be in the form of a letter, a document, or a verbal understanding. You will need proof of the agreement to win a court case.

If you are a member of a union you are likely to have a contract and you should talk to your union representative.

Sometimes a court can treat an employee handbook or personnel manual like a contract. It is helpful if you can show the company did not follow the handbook when they fired you.

Illegal discrimination is the second reason an employer cannot fire you. This happens when the employer fires you because of race, sex, age, religion, home country, or disability.

In the Charleston, Huntington, Morgantown, and Martinsburg city limits your employer cannot fire you for being gay, lesbian, or bi-sexual.

The last reason that an employer cannot fire you is if the reason for the firing is “bad for society.” An example is an employer who tells you to break safety laws and fires you if you won’t. Another example is an employer who fires you for reporting illegal company acts to the government.

Unfortunately, unless your employer fires you for one of these three reasons, you are out of luck in West Virginia. Even if a firing is unfair, it is not illegal for the employer to fire you.

Wage Problems

I don’t think I’m getting minimum wage at my job. What can I do?

In West Virginia, the minimum wage is $8.75/hour as of January 1, 2016. The federal minimum wage is $7.25 per hour.

The West Virginia minimum wage doesn’t apply to all employers. Only employers with at least 6 employees in at least one specific business location are covered.

There are also lots of specific jobs that are exempt from the West Virginia minimum wage. There are too many other exemptions to list here.

Many of the jobs that are exempt from West Virginia’s minimum wage may be covered by the federal minimum wage. But there are also exemptions from the federal minimum wage.

What about “tipped employees”?

The minimum wage law applies to employees who get tips, like wait staff in restaurants . But it is complicated because tips are counted toward the minimum wage. First, at a minimum, tipped employees must get base pay from the employer of $2.13 per hour. Second, the base pay plus tips must add up to the minimum wage. If the combined total of base pay plus tips is less than the minimum wage amount, then there is a violation.

Can my employer reduce my hourly rate of pay?

Yes, but only after providing you with a full pay period’s notice of the reduction.

When should I receive my “final wages,” after my job ends?

Your wages must be paid on or before the next regular payday . It doesn’t matter whether you quit or you were fired.

If you think you are entitled to unpaid wages, there are state and federal agencies that can help. You can contact either the WV Department of Labor, Wage & Hour Division; or the U.S. Department of Labor, Wage & Hour Division. These agencies do not charge a fee for helping you.

You can also take your claim to a lawyer. If your employer has not paid you properly, you can file a lawsuit to seek the unpaid wages. If you win the case, you can get more than just unpaid wages. A court can also give an extra penalty against the employer for violating the law. Finally, the court can also award attorney fees , which means the employer may be required to pay your lawyer fees.

Overtime Pay

I work more than 40 hours a week. Should I get overtime pay?

Both federal and state law require that “covered” employees must be paid overtime for hours worked over 40 in a workweek. The overtime rate is one and one-half times their normal hourly wage rate.

There are many exceptions to who is a “covered employee.” Generally, most employees working for hourly pay may be covered; many employees working for annual salary may not be covered.

My employer says I’m not eligible for overtime because I’m an “Independent Contractor.”

Whether someone is an independent contractor rather than an employee is determined by law and not the employer. The IRS uses a complex test to determine whether someone is an independent contractor. In general, the more control the employer has over the employee’s work, the more likely that person is an employee—who must be paid overtime—rather than a independent contractor, who does not need to be paid at overtime rates.

How can I tell if my employer is properly calling me an independent contractor?

The IRS test for independent contractor status considers many factors, like: who determines how the work will be done, who determines when the work will be done, how assignments are received, who supplies tools and materials, how expenses are reimbursed and whether the worker performs similar work for other employers. A form available on the IRS website called an “SS-8” can help guide you on whether you are an independent contractor.

If you feel you are not being properly paid for overtime hours, there are state and federal agencies that can help. You can contact either the WV Department of Labor, Wage & Hour Division; or the U.S. Department of Labor, Wage & Hour Division. These agencies do not charge a fee for helping you.

You can also take your claim to a lawyer. If your employer has not paid you properly, you can file a lawsuit to seek the unpaid wages. If you win the case, you can get more than just unpaid wages. A court can also give an extra penalty against the employer for violating the law. Finally, the court can also award attorney fees , which means the employer may be required to pay your lawyer fees.